How to Check Foreign Workers Rights

At the start of October 2016, it was announced by the UK Home Secretary, Amber Rudd, that businesses would be required to list how many foreign nationals they employ, in the hope that it forces more businesses to employ British workers. Ms Rudd said that foreign workers should not be able to “take the jobs that British people should do”.

In a world where we are taught to be accepting of all no matter their nationality, race, gender, or sexual preference, the move to effectively name and shame businesses who support foreign workers seems incredibly backward. And a new way of bringing to light the national origins of who businesses employ.

It’s important to note that the Home Secretary has said that the idea is currently being reviewed, and not policy, much less being a legal requirement which is enforceable.  Personally, I feel that these proposals will not be progressed any further, but they do evidence a renewed push on the part of the Government to discourage employers from failing to recruit UK nationals to fill gaps in the workforce.

Much is often made of the fact that overseas nationals are coming to the UK and working for less than British citizens, which then supposedly leaves UK nationals out of work. But many refute this claim and insist that without foreign workers many crucial roles would be left unfilled.

Whatever your personal or professional opinion on the subject, we’ve put together a guide to help you understand which rights you should be granting to citizens from abroad who are working in the UK.

What is a right-to-work check?

A right-to-work check involve you checking a document which grants an individual the permission to work in the UK. As an employer, it is your duty to check this before you employ anyone to ensure they are legally allowed to work for you. If you employ someone who has a time frame on the period they can work in the UK, then it is your responsibility to ensure follow-up checks are conducted.

You can take the following three-step approach to carrying out right-to-work checks:

1. Obtain potential workers original documents
2. Check these in the presence of the holder
3. Retain a clear copy of the documents and record the date the check was conducted

As an employer, you have a duty to conduct checks to prevent illegal workers from working in the UK, if they are not permitted to do so. If you carry out the checks correctly, then you will have a statutory excuse against any liability which may be bought about in regards to civil penalties. Providing you have checked and documented the required checks then you will not receive a civil penalty if you were found to have employed an illegal worker.

Who should I conduct checks on?

You should carry out right-to-work checks on all potential employees no matter their nationality. As an employer, you should show no bias or discrimination against anyone who applies for the job role you are recruiting for.

No assumptions should be made about a person’s right to work in the UK based on their colour, nationality, ethnicity or national origins, accent or length of time they have been a resident in the UK.

Any breach you do make against the code of practice for employers may be used in evidence in legal proceedings – so act with precaution.

If no restriction to work in the UK is found, then you are not required to conduct any follow-up checks. However, if some restrictions on working are found such as a time-limited visa, then you are required to carry out follow-up checks.

What documents do I need?

Acceptable documents include:

• Biometric Residence Permits
• Residence Cards
• Passports
• Certificate of Registration or Naturalisation as British Citizen
• Rights of Abode Certificates
• European Economic Area documentation – passport or national identity cards
• Permanent Residence Certificate
• Certificate of Application that permits work
• Asylum claimants need to supply a Positive Verification Notice
• Entry Clearance Vignette

You should check documents are genuine and that the holder matches the documents they are presenting to you. You also need to ensure that the potential employee is able to legally carry out the work you are offering.

Things to look out for on documents include:

• Check photographs and date of birth is consistent across all documents
• Ensure expiry dates have not passed
• Look at whether any work restrictions apply
• Check documents have not been tampered with
• Question the owner if difference across the documents occur. If these are easily explained ensure follow-up documents are obtained

You’ll need to make unalterable hardcopies of the documents you require and keep these for the duration of an employee’s time with you, and for an additional two years after employment has been terminated.

What happens if I employ an illegal worker?

If you don’t want to run into trouble with the law, then ensure that you conduct the necessary checks and always record the dates and documents which you were presented with. Employers who are found to have employed illegal workers may face up to five years in jail and be required to pay an unlimited fine, regardless of whether workers were knowingly employed illegally or if you had reasonable cause to believe they did not have the right to work in the UK.

If you had reasons to believe the following, then you may be found guilty of employing an illegal worker:

• The worker had no permission to enter or remain in the UK
• Their leave had expired
• They weren’t allowed to undertake certain types of work
• Their documents were incorrect or false

It’s your responsibility as an employer to ensure that you’ve carried out the checks correctly. Failure to do so can result in catastrophic penalties for your business both financially and in the eyes of the public.

While these new measures by Amber Rudd remain to be officially confirmed or come into effect, ensuring you are adhering to the rights of foreign workers now can allow you to stay ahead of the game should changes to the law be made.